What Are We Paying for? USCIS and the I-526 Exemplar Proces
[Author's Prescript]: In the spirit of fairness and open dialogue, I contacted the Community Relations Department of the California Service Center prior to publication to elicit their comment. No reply was received.
USCIS Director Alejandro Mayorkas deserves credit for trying to bring meaningful procedural and operational reforms to USCIS in general and to the EB-5 program specifically. He has pushed for regulatory clarity, consistency of adjudications, and most notably, the introduction of premium processing for EB-5 petitions. However, the Director’s hard work and good will are in danger of being wasted by his own organization. A salient example of how the Director’s own agency actively undermines his initiatives is brought to the fore when considering the sham that is the I-526 exemplar process.
The concept of the I-526 exemplar petition was introduced by the December 11, 2009 memo on “Adjudication of EB-5 Regional Center Proposals and Affiliated Form I-526 and I-829 Petitions; Adjudicators Field Manual (AFM) Update to Chapters 22.4 and 25.2 (AD09-38) (the “Neufeld Memo”).
The theory behind allowing qualifying Regional Center projects to file so-called “Exemplar Petitions” was to improve overall EB-5 processing. If a project submitted a sample I-526 petition for prior USCIS review and the project did not materially change over time, then the subsequent I-526 petitions were supposed to be processed in a more consistent manner. At first, exemplar processing was a courtesy provided free by USCIS. An exemplar was filed and eventually USCIS would issue an approval notice. Since there was no fee for an exemplar, USCIS did not issue an I-797 receipt notice upon filing.
Something changed around Fall 2010. My office filed an I-526 exemplar petition in October 2010, just prior to the implementation of Form I-924 and the attendant $6,230.00 filing fee. We received an I-797 receipt notice based on this exemplar filing in which the filing was deemed an amendment to the Regional Center’s designation. Legally, this was not correct. The exemplar filing neither asked for an expansion of the Regional Center’s area of geographic scope, nor was the filing asking for the addition of a new industrial focus. The filing was simply requesting pre-approval of a new project in an area where the Regional Center was already established and in an industry for which it was likewise already approved. So why was this exemplar classified as an amendment? USCIS was gearing up for the money grab.
In the intervening two years since the Neufeld Memo appeared, USCIS has said time and again that the exemplar process was meant to improve the adjudication of subsequently filed I-526 petitions.
Apologies to the late Edwin Starr and his classic 1969 anti-war song, “War,” but paraphrasing his lyrics provides us with a clear picture of the reality of the I-924 exemplar process as applied by USCIS.
“Your Exemplar. What is it good for?”
“Absolutely nothing! Say it again!”
“Your Exemplar. What is it good for?”
It has become painfully obvious, despite Director Mayorkas’ public comments and USCIS written guidance to the contrary, that USCIS has no intention of honoring its numerous promises to give deference to an I-526 exemplar approval. EB-5 stakeholders continue to receive Requests for Evidence (“RFEs”) for I-526 petitions based on approved exemplar petitions where there was no change to the project. The RFEs are questioning aspects of the EB-5 projects, aspects that were reviewed (or were supposed to have been reviewed) during the exemplar process. So why was the project good enough during the exemplar process, but now magically deficient when serving as the basis of an I-526 petition? Did USCIS just cash the $6,230 check, put the filing on the shelf for months, then pick it up and send an approval without reviewing it?
So why is USCIS issuing RFEs for I-526 petitions for project-related questions vetted and approved during the exemplar process? The Neufeld memo quoted above states on page four:
“A previously favorable decision may not be relied upon in later proceedings where, for example, the underlying facts upon which a favorable decision was made have materially changed, there is evidence of fraud or misrepresentation in the record of proceeding, or the previously favorable decision is determined to be legally deficient.”
The reasons outlined for not giving an exemplar approval deference are fair enough. However, none of the RFEs for I-526 petitions based on an approved exemplar make of these assertions, nor has the exemplar petition approval been reopened for any of these reasons. Therefore, USCIS is not following its own guidance. Is this intentional or does the left hand not know what the right hand is doing?
During the September 2010 EB-5 stakeholders meeting held at the California Service Center, USCIS officials told the audience that stakeholders were going to be happy with the November 2010 introduction of Form I-924, with its $6,230.00 filing fee, as well as the increase in the Form I-526 filing fee to $1,500.00. How could this be, I asked? The answer I received was that these astronomical fees would allow USCIS to raise headcount by hiring more adjudicators and more specialist business analysts and economists. The logical outcome, of course, would be that not only would sluggish, slothful, or glacial processing times remarkably improve, but the quality of adjudications would also improve and become more consistent! “What could be better?” “How could you not like these fees?” “We’re giving you want you want!”
Well, I was skeptical about this bright-future propaganda that was being force-fed on the EB-5 stakeholder community then, and the events of the past 15 months have confirmed my initial pessimism. Processing times have not budged one bit. It still takes USCIS eight months to process an I-526 petition. The quality and consistency of EB-5 adjudication has not improved either. Stakeholders regularly receive RFEs for specious reasons based on shaky reasoning. Thus, if these high fees were the solution to the problem of slow and inconsistent processing, the solution has failed.
During the November 2011 AILA California Chapters Conference, my San Diego AILA colleague Kimberly Roubidoux noted wistfully that when she began her career in immigration law, H-1Bs cost $85.00 and were adjudicated in three weeks by the Vermont Service Center. Today, H-1Bs can cost up to $3,550.00 in filing fees and the Vermont Service Center now needs four months to make a decision on an H-1B. Yes, folks, you are paying 41 times more to get something 5 ½ times slower. Now that’s value.
As we know, USCIS is mostly funded by user fees and the agency must periodically justify to the U.S. Congress that its fees are appropriate. Yet, as fees increase across the board, service fails to improve. How can USCIS continue to justify its fees? Sadly, I would be willing to surmise that USCIS could raise I-526 filing fees to $5,000.00 and I-924 filing fees to $25,000.00 and we would still fail to see any the benefits promised by USCIS during the September 2010 EB-5 stakeholders meeting.
Yet, despite the failure of increased fees to improve EB-5 processing times and service, Director Mayorkas wishes to implement premium processing for certain Form I-924 applications and possibly certain Form I-526 petitions. The Director’s rationale is sensible and worthy of support. Job creation and investment are often on hold while the Forms I-924 and I-526 remain stuck for almost a year each in the bowels of the USCIS California Service Center. However, Director Mayorkas unfortunately misses the point. Fees at any level would fail to solve the problem. The problem is the perverse incentives that USCIS faces when trying to fund its own operations.
I generally do not subscribe to conspiracy theories. Conspiracy theories are best left to people who can spends weeks at a time camping out in parks and public squares, protesting whatever it is they’re protesting (these people would benefit immensely from the job creating stimulus of a functional EB-5 program). I will nonetheless offer my own conspiracy theory. EB-5 stakeholders have noticed an upswing in EB-5 related RFEs (although USCIS would probably dispute this assertion, they always do until the true numbers eventually leak out) and another slow down in processing times that coincides with the Director’s initial announcement that he wished to introduce premium processing into EB-5. Coincidence? I don’t think so.
Another factor driving this upsurge in EB-5 RFEs is also too coincidental to be anything but deliberate. As referenced above, the EB-5 unit has seen an upsurge in headcount funded by these skyrocketing fees. The RFEs that question the basis of exemplar approvals tend to be focused on the business plans and economic studies included as part of the approved exemplar petition. Therefore, I surmise this trend is also intentional as a way for USCIS to justify expanding its headcount in this area, under the “look, just look at these bad business plans and economic studies. Good thing we hired all these people. Let’s give ourselves a pat on the back for our foresight.”
For years, the EB-5 stakeholder community has had to listen to a series of unconvincing excuses as to why premium processing was inappropriate for EB-5. “Impossible.” “EB-5s are too complex.” “We can’t guarantee that we can process in 15 days.” And my favorite, usually offered in a dismissive manner, “nothing is a priority if everything is a priority.”
By pushing premium processing, Director Mayorkas, knowingly or otherwise, is offering a direct challenge to these years of accumulated dismissals of the idea that premium processing could work for EB-5.
Therefore, my conspiracy theory is that this upsurge in EB-5 related RFEs and a slow down in processing times is part of a deliberate bureaucratic counterattack to delay and hopefully kill off Mr. Mayorkas' EB-5 premium processing idea once and for all. How sad would that be? While USCIS career bureaucrats protect their turf and reputations, job creation and investment in the U.S. remain stalled. Yes, indeed. The American people are being held hostage. USCIS can hire as many “Entrepreneurs in Residence,” and bring in as many business process consultants as they want. The underlying problem will not change.
Don’t get me wrong. Obtaining an exemplar approval is not entirely useless. It continues to serve as a mechanism for new projects affiliating with existing Regional Centers to show that USCIS recognizes this affiliation. With the Regional Center marketplace becoming more crowded and fake Regional Center projects popping up from time to time, an exemplar approval can be useful in marketing to show potential investors that the project is real. However, providing Regional Center projects with marketing credibility was not, and should not be the intention of the exemplar process.
While the theory behind the exemplar process is exemplary, the reality of the situation has become an absolute joke, a shameless money grab. So the next time you feel like filing an exemplar and paying the $6,230 I-924 filing fee, do something more useful with that money. Put the money pile in a fireplace and light it on fire. You’ll get more out of it, such as keeping warm on a cold winter’s night or possibly toasting some marshmallows if you're motivated.Footnotes
1Adjudication of EB-5 Regional Center Proposals and Affiliated Form I-526 and I-829 Petitions; Adjudicators Field Manual (AFM) Update to Chapters 22.4 and 25.2 (AD09-38), December 11, 2009.
2I asked the question during the March 2010 stakeholders outreach session, “well, if you won’t issue an I-797, how do we know you have the filing and are working on it?” The answer I received was something to the effect of “trust us.
3See http://en.wikipedia.org/wiki/Edwin_Starr, last accessed December 21, 2011.
42009 Neufeld Memo, page 4.
6The principal blogger of www.nationofimmigrators.com, Angelo Paparelli, was also a panelist during Kimberly’s reminiscences.
7See the latest Vermont Service Center processing time report as of November 14, 2011, http://www.aila.org/content/default.aspx?docid=37649, last accessed December 21, 2011.
Brandon Meyer is Principal of Meyer Law Group, which has offices in Stamford, CT and Solana Beach, CA. This article is drawn from "Bad Cases Make Bad Law: The AAO and EB-5," published in the June 2011 issue of Immigration Briefings.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.